Law,social science and the “brainwashing” exception to the first amendment

Litigation in the “cult wars” has shifted from “deprograming” cases to civil suits by ex-converts based on “brainwashing” claims, and to criminal defenses claiming incapacity due to cultic brainwashing. Early cases were decided on the basis of first amendment derivations barring judicial inquiries into conversion processes and religious authenticity. In 1988 the California Supreme Court carved out a narrow exception to this doctrine to be applied to circumstances where “coercive persuasion” is combined with concealment of a group's identity. The Court's opinion entailed characterizations of the process and consequences of brainwashing which are problematic from the standpoint of social science. Several key questions must be resolved before brainwashing theories can make a constructive contribution to litigation involving religious groups. These questions relate to broader issues involving the nature, causes and indicators of involuntariness, and the closely related problem of drawing the line or identifying the exact point on a continuum beyond which the means or intensity of indoctrination becomes incapacitating. Although the 1988 California decision did not resolve these issues, they were considered from 1988-91 by several courts making procedural rulings on the admissibility of “expert” testimony on brainwashing/psychologicd coercion. A concluding section relates this legal to the duality of ‘soft’ vs. ‘hard’ determinism in social science.